[Simon Archer] Thursday, April 2, 2020

We are all in our own form of isolation from the plague; perhaps this is our Decameron.

The rapidity of events makes it difficult to reflect. Although COVID-19 has been present elsewhere for some time, its presence has manifested most acutely in this neck of the woods in March. If we measure time by the government response to the pandemic, we have the following:

  • On March 11, 2020 the World Health Organization declared COVID-19 a global pandemic.
  • On Wednesday, March 11, the Federal Government announced that the one-week waiting period for Employment Insurance (EI) sickness benefits would be waived for those workers who are in quarantine or who have been directed to self-isolate as a result of COVID-19. (EI is an income support program paid for by workers and employers intended to provide minimal income during periods of unemployment. It is time-limited and low, by OECD standards.)
  • On Thursday, March 12, the Ontario Government ordered all public schools to be closed until two weeks after March break. The closure has since been extended indefinitely. Similar school closures have occurred in other provinces.
  • On Friday, March 13, the Federal Government listed all countries (other than Canada) as Level 3 risk and advised travellers returning to Canada to self-isolate for 14 days following their return from travel.
  • On Monday, March 16, the federal government announced that entry to Canada would be denied to all but symptom-free Canadian citizens, permanent residents and their immediate family members (and at that time U.S. citizens).
  • On Tuesday, March 17, a state of emergency was declared in Ontario (by the Ontario Government). This authorized Cabinet to make certain orders for the purpose of protecting health, safety and welfare.
  • Also on Tuesday, March 17, the Ontario Government issued orders under emergency its powers prohibiting all organized public events of over 50 people and requiring the closure of all facilities providing indoor recreational programs, public libraries, private schools, licensed child care centres, bars and restaurants (except for takeout and delivery), theatres and concert venues.
  • On Wednesday, March 18, Canada and the U.S. agreed to restrict non-essential travel across the border, thus barring U.S. citizens not engaged in certain activities deemed essential.
  • Also on Wednesday, March 18, the Federal Government unveiled an $82 billion emergency response package to help Canadian businesses cope with the pandemic, which would include new emergency leave benefits to support workers who have to stay home as a result of the pandemic but don’t qualify for paid sick leave or EI. No-one knows how to measure billions anymore: the Government described it as worth 3% of Canadian GDP, but that isn’t right, because $55 of that $82 billion is deferred taxes – not really debt relief or injection of cash, just deferral. If we compare relief packages to other OECD countries, it is modest: New Zealand (4% of GDP), Sweden (6%), even America (likely 4-5%, based on discussions so far). But it is a good first step.
  • On Thursday, March 19, the Ontario Government introduced Bill 186, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which has since been enacted. It provides job protections for certain employees affected by COVID-19.
  • On Saturday, March 21, the Ontario Government issued an order under its emergency powers making wide-ranging changes to how health service providers deal with their employees, overriding both employment legislation and collective agreements. Similar orders implementing nearly identical rules for long term care facilities and water and sewage systems were made on March 23.
  • On Sunday March 22, 2020, the Ontario Government announced that it will offer free emergency child care for certain essential workers. The next day, the government took measures to enable this through an order easing daycare restrictions that would otherwise apply.
  • On Tuesday, March 24, the Ontario Government issued an order under its emergency powers requiring the closure of all businesses deemed non-essential. As a result, many businesses have been effectively shuttered for the duration of the emergency, where they cannot operate on a remote basis.
  • On Wednesday, March 25, royal assent was given to the federal COVID-19 Emergency Response Act, which among things, creates a new Canada Emergency Response Benefit providing income for workers affected by COVID-19.
  • On Friday, March 27, the Federal Government announced further measures to discourage layoffs, including transfers to employers with an intent to subsidizing payroll costs up to 75% (capped under $60,000, more or less the average industrial wage), backing interest-free loans and waiving GST remittances.
  • On Saturday, March 28, the Ontario Government issued a further order under its emergency powers applicable to long-term care homes that would, among other things, remove training requirements for workers and allow homes to bring in volunteers.
  • Also on Saturday, March 28, the Ontario government issued an emergency order to prohibited organized public events and social gatherings of more than five people.
  • On Monday, March 30, the Ontario Government issued an emergency order to close all outdoor recreational amenities such as sports fields and playgrounds.
  • Also on Monday, March 30, Ontario’s Chief Medical Officer of Health recommended that all people over the age of 70 as well as those with compromised immune systems or underlying medical conditions self-isolate given the elevated risk of severe outcomes should they contract COVID-19.
  • Yesterday, April 1, the City of Toronto’s Medical Officer of Health, noting a 628 cases (population ~3 million, but is a 500% rise in cases over two weeks), declared a full lockdown, “strongly directing” people to stay at home (which in Canadian terms is strong language), limit travel to once per week for food shopping or medication, and permitting limited daily walks at social distance, all for a period of 12 weeks. The rationale for the directive (which is strongest under municipal powers) is that “we are seeking to avoid a New York situation”.

That’s the state’s response, to date. It raises a lot to talk about already. There is a crisis and the state has responded, and it is easy to pick fault with anything done in an emergency. It is better to be grateful for a response at all (cf. Trump’s utter fecklessness) and then express measured anxieties over these responses.

The use of emergency powers always comes with anxieties. It is easy to remember our discussion of states of exception after 9/11 and their lasting wars and impacts. An old journalist friend who is an expert in state intelligence agencies, holds that once extraordinary powers are given, they are almost never taken fully back.

Today, those powers have been used to isolate populations, intervene in workforces, and to a much more limited extent, coerce capital. Note that the most fundamental power of working people – collective labour contracts – were immediately over-ridden generally, but applied so far only in some sectors. Profiteering has not been addressed at all – particular pharmaceutical and medical supply, despite protestations of some state actors. Nor have other “rights of capital”. In Canada there have only been voluntary half-measures related to debt deferral. There are weak conditions tied to the state aid (and note that EI isn’t state aid – it is self-funded by workers and employers), and there is a telling word-play: transfers from government to employers are called “wage subsidies”. They are intended for that purpose, query how that will be monitored, but they are really business “net revenues” subsidies. Everything counts in large amounts, but the contours of relief are, or will be, asymmetric.

Two groups of workers have become the immediate focus: front line health care workers (defined broadly: a friend is a deaf-blind intervenor, who is working each day) and “supply chain” workers. The former are often dominated by professional workers, but of course include a wider variety of workers, as the tragedies in the nursing homes is reminding us. The latter are the already-existing but newly rediscovered essential workers that feed you and clear your waste and keep the lights on. If this pandemic has one outcome, I hope it is that these supply chain workers get permanent protection in the form of proper sectoral regulation of their work, decent wages and benefits. I am not optimistic; these are opportunistic and predatory times for capital.

There are growing anxieties about use of surveillance technologies by the state and by the large tech companies, including the app du jour, Zoom, which is already the subject of class proceedings in the U.S. for selling user data to Facebook, and has plenty of security weaknesses.

The typical contours of disaster capitalism are emerging in entirely predictable ways – the Alberta Government laid off thousands of public employees (teachers) to save money, but found several billion dollars to pay to a private oil company to build a pipeline, announced yesterday.

There are dozens or hundreds of similar stories reported from around the globe, some more and some less egregious. But in an emergency, we might expect, even if we don’t like, that the state will respond by using existing infrastructures: it will use its powers to protect health and public safety, and it will use its powers to “freeze” or otherwise deliver a bailout, a subsidy, through the private sector.

You know the old saying about the Marxist economist who predicted five out of the last three crises. But if we had to summarize a reflection quickly, we’d say that all this is just “buying time” in the largest sense of that phrase; until a vaccine is distributed and things return to whatever the new normal is, which right now appears to be a deepening and extending of existing structures and fissures in our economic relations. Who knows what they will be, and I’d far rather we had consensus for some real, transformative changes to social and economic relations that we could advocate for in this moment, and resist capital’s power in this moment, but we do not (have consensus or a sense of a movement: we have plenty of ideas.)

Coming at the experience from the other end, I’m a labour lawyer, and so my firm’s first order of business was to shift our way of working to home, and then to look around to see if there was a labour market anymore. That took perhaps a week and is of course a work in progress. Another time I will post about the way in which the justice system in this neck of the woods has responded and adjusted, in particular to the perhaps-temporary shift to remote, online hearings in front of decision-makers. But those are technical and procedural matters. There was, however, a funny Dickensian moment when the courts closed and there wasn’t spontaneous social protest. I’m shocked, shocked I say.

There must be literatures on the psychology or sociology of quasi-isolation that these conditions create. Front of mind are the emotional swings, from the excitement and even carnivalesque atmosphere of the first week or so to the second week of more anxious and depressive moments, the alternating sombre “check ins” to the delight in seeing people online. My colleagues have brought considerable humour and generosity to the moment, there has been a lot of sharing and mutual encouragement. We’re doing a lot of pro bono work. We’re cooperating with other labour side firms, and notably, with management side firms, to try and get things on a steady footing, and make sure the truly necessary processes are done. Needless complication, delay and positional adversarialism, sad hallmarks of much lawyering and legal systems, has been tempered somewhat by a recognition that cooperation and mediation are more effective, at least in many cases or ways. These are I think important lessons for legal practice cultures which will hopefully be remembered in non-emergency moments. I’m sure there are more difficult moments ahead. Here we are mid-week into the third week (in our local COVID timeline) and, it appears, we are on the brink of the most severe period in the spread of the virus locally. I hesitate to peer any further into the future.

One thing that this blog might do is permit us to share more global perspectives – something Peer and Priya have spent years doing already as part of their work and life – but not something always and easily available to folks like me. One of the recent reflections in this vein comes out of learning about the virus itself, and how these things spread around the globe. It seems that we are seeing certain “hot spots” emerge, but our discourse of it has been limited mainly to China, then Europe, and now North America. We have spent time following the reactions of states in those nations/regions, and all seen the “curves” described by the spread in each (to date they have really only “flattened” in China and South Korea, but appear to be “mature” in Italy and France).

What we haven’t discussed as much is South East Asia (Vietnam is an interesting example of an early responder, in part due to the travel with China) or, African countries.  I really don’t know, but believe Stephen Lewis when he says that some of the weakest health care systems in the world are in African countries, and so the continent is perhaps likely to be both ravaged by it as well as forming a “sink” of the COVID virus and its successors and filiations. I see almost no discussion of this beyond local hero Lewis and some of the better socialist blogs. I may be looking in the wrong places.

Astonishingly, in Brazil, if the Guardian can be trusted, it appears that the first responsible leaders to take effective social action were the favela “bosses” (said to be drug lords), who imposed social distancing protocols; Bolsonaro is still in a state of denial, as, it appears, is his ideological opposite AMLO in Mexico. BSS’s famous study is vindicated and he must be appalled. These are perplexing reactions and I am likely not understanding the context very well. However, if true, like Africa, these developments suggest that the Southern Cone could also become a “sink” for the virus. In Chile, true to anti-democratic form, Pinera delayed the April plebiscite which was to see his powers curtailed and a form of democratic assembly enhanced, placing him that much closer to Orban in our political cosmos.  

So following the virus around the globe gives us a “vector” to look at the local reactions – relative quality of the state’s reactions to its local crisis – but also our sense of relations between them. Plenty of op eds have asked whether this crisis will accelerate or retard “globalization” or the new nationalisms (dark ironies: this time, national emergencies were declared for actual emergencies, and not just trade policy or industrial strategy objectives of the Trump administration); some have compared and contrasted the last great crisis – the global financial crisis – to this one, which although driven by a pandemic will cause an economic crisis of a more “fiscal” nature, in the economist’s lingo; some have explored the varieties of new kleptocratic capitalism.  Everyone has trotted out their list of “asks” in response, from the climate change movement to the business of using prisoners to dig mass graves (NY, yesterday).

But we are only two-and-a-half weeks into it, on a local timeline: surely far too soon to opine, even for a common lawyer.

Simon Archer | Toronto | April 2, 2020

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